When Cows Facilitate Court, the Culture of Gifting and Corruption in Modern Courts

February 14, 2017 | Juliet Hatanga

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In this post, Juliet Harty Hatanga, who has ten years of experience working with the Courts of Judicature of Uganda, discusses two cases in which the social norms of corruption and the culture of gifting challenged her ethics and training as a judicial officer. She argues that, despite the challenging cultural environment, it is well within the power of judges to make sure that justice is done – and seen to be done – at all times.

In December 2006, I joined the Uganda public service as a judicial officer and was posted to work in Lira as a magistrate. At the time, most of the government infrastructure responsible for upholding the rule of law had totally broken down. I recall that most of the internally displaced people camps were beyond full capacity. The majority of people preferred to stay in the camps where they were assured of some form of protection from the Uganda Police, in spite of a government disbarment in the peace recovery and development plan program.

As I sat in the bus, en-route to Lira it was apparent from Karuma Bridge that the place had been mostly deserted. There were no longer chickens and cattle crossing the road, nor women riding bicycles with babies strapped to their backs. When I reached the Loro prison farm, just a few meters off the Lira-Kampala highway, I saw that the once blooming farm (especially in the planting season) was covered in brown dirt.

I wondered what I had signed up for. As a young judicial officer, I was eager to enter the courtroom and dispense justice – but where were the people?

The Context of Fragility

I had fond memories growing up in Lira as a child. These fond memories had been abruptly disrupted by Alice Lakwena’s holy-spirit movement that turned into a civil war under the leadership of Joseph Kony. From 1986 to 2006 the Northern region in Uganda plummeted into severe humanitarian crisis. The people were subjected to mass atrocities, which caused loss of life, assets and destruction of property.

The wrath of the civil war did not spare the criminal justice system. The state’s ability to provide appropriate legal service and access to justice was greatly undermined by the absence of appropriate duty-bearers like the police, courts, and prisons. Consequently, the type of justice delivered depended not on the rules of criminal procedure as taught in law school, but rather on the social norms surrounding a particular judicial officer and his or her ability to navigate through the justice system.

Something Small

Nonetheless, at the courtroom, people wanted justice. Some litigants who had lost trust in the legal system were willing to part with kitu kidogo (“something small”) so that they could get justice. These corrupt tendencies were fed by social norms such as the culture of gifting (a social norm that may support interactions that outsiders see as corrupt, but the participants treat as acceptable or even moral.)

Delivering the Right Justice to the Right Person

The following incidents are only two examples of how some cases have challenged my ethics and training as a judicial officer.

[For more analysis on corruption in the judiciary in Northern Uganda please see here.]
My mother came from the Northern Uganda region, so I can speak Lou, one of the native languages. However, because the language of court is English, and my name comes from Western Uganda the court staff didn’t realize I spoke Lou.

So, I was shocked to find out that the court clerk, who usually also acted as the official interpreter, often misinformed litigants. At first I thought this was an innocent problem of not appreciating the Queen’s Language, but later I realized that these mistakes were intentional.

On several occasion the clerk would tell an accused person at plea hearing that they had a right to bail only if they “passed through him” or that he imprisoned them for a few days. Generally, he was feared, and commanded a lot of power over the accused.

One day, after I delivered a ruling in favor of his adversary, a very angry litigant accused me in open court of not delivering “justice” after “taking his only choice bull.” When I invited him to my chambers, he asked me why I had not ruled in his favor even though he had delivered a bull to my clerk, as the clerk instructed him.

By this time the clerk had disappeared. We sent police to his home, some 3-kilometer away from court, only to find the him relocating a huge white bull and a heifer to another location. Apparently, he had read my half-written ruling. I had a tendency to complete my ruling just the day before court seating, and at the time it looked like the litigant was winning, so the clerk had approached him and demanded on my behalf a bull and a heifer for him to turn things in his favor.

Refusing Appreciation for A Job Well Done

In yet another unprecedented incident, one morning the court clerk came to my office in a state of panic and told me that Jacinta,* a very old widow who could not even recall her own age, was at the court gate with a bull which she insisted to hand over to me in person.

This widow had her two grandchildren, aged about five and seven, help her drag the bull to court. She was adamant that she had to give it to me in person. So, you can imagine the melee that her actions were causing, given that any right-thinking member of the public would most definitely conclude that this was a bribe.

On checking her file, I discovered that Jacinta had been disposed of her land after the demise of her husband during the LRA insurgency. He left her with eight children. She had previously been arrested on accusation of being responsible for the death of her husband and banished from the village. Over the years, Jacinta had sold everything she had to “facilitate” her case. My ruling had restored her right of ownership over her late husband’s land.

When asked why she had brought a bull, all Jacinta had to say was that

“I have walked for over four years to get justice. This young girl completed my case in just six months. I have lost everything… for restoring my land she deserves this last bull. Because of her I now know that when God calls me my spirit shall have a place to rest and my grandchildren shall not forget me.”

Everybody was touched by her story, but I found myself in a dilemma. To refuse this gift would be a very big insult to this lady because in Lango culture it is customary to gift/thank a person for a job well done. Either way, my reputation was at stake.

To this day I still wonder what the appropriate action ought to have been.

How Do We Fight Corruption in the Context of kitu kidogo?

Like most developing countries, Uganda has institutions with specific mandates to fight corruption, including an Anti-Corruption Court where public servants suspected of engaging in corruption are prosecuted. Yet in spite of the anti-corruption sanctions, corruption has continued much to the detriment of the functioning of state institutions.

As a practitioner my biggest challenge is that most of the formal regulations designed to fight corruption are ignorant of the cultural context. While the culture of gifting is deeply entrenched in almost every tribe in Uganda, public service regulations prohibit civil servants from accepting gifts or tips in any form. The judicial code of conduct equates receiving a gift or tip to a criminal act.

The support staff in the courts find it difficult to discern a corrupt act from an innocent thank you. In this state of confusion, corruption subsists through social norms even when most people condemn the practice.

The Iron Fist is Not Enough

While we focus our fight against corruption in the justice system, social norms should not be understated lest we risk making a wrong diagnosis of what feeds, and will continue to feed, corruption in the justice system.

Over the years the judiciary has handled incidents of corruption with an iron fist. Many judicial officers and support staff have been prosecuted or interdicted. In my humble opinion, this is not enough.

Perhaps more effort should be geared towards individual accountability and developing a clear rewards system that recognizes those officers who resist corruption. Judges are custodians of the law, and it is well within our power to make sure that justice is done – and seen to be done – at all times.

A Note from the Author

Before I take leave of this subject permit me to add that decades of war in northern Uganda eroded the traditional cultural practice through which traditional forms of justice could be sought. The criminal justice system in the region has seen renewed forms of conflict, regarding land disputes, and how the government has been handling them. The current situation has been attributed to insufficient recovery and development efforts for IDP camp returnees, even though the camps have long been closed.

*Real names have been replaced in the post to preserve individuals’ privacy

About this article

This post is part of the corruption in fragile states series. The series provides a space for conversation about corruption in fragile states. Since its inception in 2016 as part of the CDA Perspectives Blog, the series has sought to challenge status quo thinking with a particular emphasis on exploring systems-based approaches to understanding and acting on corruption dynamics. Topics in the series range from new research findings in Uganda, Iraq or the DRC to provocative thought pieces intended to contest dominant paradigms or practices.

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Ms. Hatanga’s areas of expertise are reproductive health rights, and access to justice for women and children. As a legal practitioner, she developed a strong and successful track record for promoting international human rights standards in courts and advocating for the use of Alternative Dispute Resolution.

Hatanga was an independent consultant for Tufts University researching the impact of corruption on the Criminal Justice System and State Legitimacy. Most of her work has been dedicated to protection of human rights, the rule of law, women peace and security. She co-founded “Over the Moon” a charity that seeks to promote education for schoolgirls by reducing menstrual absenteeism in conflict affected-northern Uganda. This earned her special award by the Women’s Law and Public Policy Fellowship Program of Georgetown University.